Mrs.Panchalai (Alias) Nathiya vs Mrs.Mannammal
2021 Latest Caselaw 10861 Mad

                                                                                       S.A.No.420 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 28.04.2021

                                                             CORAM

                                         THE HON'BLE MR. JUSTICE M.SUNDAR

                                                       S.A.No.420 of 2021


                     1.Mrs.Panchalai (alias) Nathiya
                     2. Mrs.Suganya                                           ... Appellants

                                                       Vs.
                     1.Mrs.Mannammal
                     2. Mrs.Selvi
                     3. Mr.Ravi
                     4. Mr.N.Mahalingam
                     5.Mr.R.Karunakaran                                       ... Respondents


                           Second Appeal filed under Section 100 of the Code of Civil Procedure,
                     1908 against the judgment and decree dated 08.01.2021 made in A.S.No.28 of
                     2019 on the file of the Hon'ble Principal District Court, Thiruvannamalai by
                     confirming the judgment and decree in O.S.No.90 of 2013 on the file of the
                     Hon'ble Principal Sub-Court, Tiruvannamalai dated 22.03.2016

                                            For Appellants : Mr.K.Senthil

                                                          JUDGMENT

Age of the lis which has lead to the captioned second appeal is 8 years. To

be precise, lis commenced on 26.04.2013 when a plaint was presented by two

daughters of one Murugesan, in 'Sub-Court, Tiruvannamalai' (hereinafter 'trial

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court' for the sake of convenience) with prayers inter-alia for partition and separate

possession of 2/5th share (collectively to the two plaintiffs) of suit properties.

2. After full contest, the aforementioned suit was dismissed in and by

judgment / decree dated 22.03.2016 made by the trial Court. The non-suited

sisters carried the matter in appeal by way of a regular first appeal under Section

96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) vide

A.S.No.28 of 2019 on the file of 'Principal District Court, Tiruvannamalai' ('first

Appellate Court' for the sake of convenience). First Appellate Court also, after full

contest, dismissed the appeal suit (confirming the dismissal decree of trial Court)

in and by judgment / decree dated 08.01.2021. As against the aforementioned

concurrent judgments/decrees, sisters, who were plaintiffs in the trial Court, have

come up by way of captioned second appeal, which is obviously under Section 100

CPC.

3. Notwithstanding very many grounds and notwithstanding as many as

three questions being proposed as substantial questions of law in the memorandum

of grounds of second appeal, Mr.K.Senthil, learned counsel on record for

appellants contended that the lis is between members of one family, the fourth

respondent does not have any right over the suit properties as he has purchased the

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same dehors the appellants and the Courts below have erred in not considering the

contentions of the plaintiffs in this regard.

4. The points for determination that arise in the captioned second appeal are

a) Whether the fourth defendant being an alienee infarcts

the proceedings?

b) Whether there is any infirmity in the judgments of Courts

below owing to presence of fourth defendant? and

c) Whether any substantial question of law arises in the case

on hand?

5. The second point for determination can be taken up first. A careful

perusal of judgments of courts below make it clear that they turn heavily on a

earlier suit O.S.No.307 of 2004 between the parties, wherein that earlier suit was

decreed after purchase of the same by the fourth defendant. Findings of trial Court

regarding the earlier suit are articulated in paragraph 18 of the trial Court

judgment, which reads as follows:

'18.From the cross examination of PW1, this court could see that there is an earlier suit instituted by the 4th defendant in O.S.307/04 for partition of the suit property. After purchase of the same from Mannammal with the other co-owners and he got preliminary decree and Final decree in his favour and taken possession of the suit property through E.P.190/10. These aspects

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were suppressed by the plaintiffs in their plaint and even after filing of the written statement, the plaintiffs have not come forward to file reply statement explaining the possession taken by the 4th defendant through E.P.190/10 and how for the decree passed in O.S.307/04 would not bind them. Even during chief examination of plaintiff, there is no explanation or denial regarding the facts stated in paragraph 4 of the written statement by the 4th defendant.

During cross examination of DW1, it could be seen that as against the 4th defendant the plaintiffs instituted various proceedings and given complaint before Public officials for taking action against him in order to regain the property which was sold by their grandmother in 2002. So this court could take judicial notice of the fat that the first and second defendant had sold the suit property to the 4th defendant in 2002 through Ex.B1 and now through the plaintiffs being their grand children, the present suit is filed in order to circumvent the sale deed executed by them. The same could be confirmed from the cross examination of PW2 by the defendant who had categorically stated that the second defendant Selvi though she remained ex parte in the suit had appeared in the court along with PW2 and she alone brought PW 2 of the court. So these facts would show that the plaintiffs under the instructions of the defendants 1 and 2 had filed the present suit seeking the relief of partition without any lawful claim. Therefore this court finds that the plaintiffs have failed to prove how the decree and judgment passed in O.S.307/04 in respect of partition of the suit property in favour of the 4th defendant and property allotted to his

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share and possession handed over through E.P would not bind them. Hence Issue No.1 is answered against the plaintiffs.'

6. The above speaks for itself and there is nothing demonstrable before this

Court qua any infirmity in the same.

7. Furthermore, second plaintiff has examined herself as PW1 and marked

Ex.A1 sale deed in favour of Chinnathambi Mestri. Exs.A2 and A3 are the House

Tax receipts evidencing house tax being paid to the Panchayat qua suit properties.

Ex.A4 is electricity bill qua suit properties, but two documents, i.e., joint patta

No.469, dated 17.08.2011 and Natham patta No.157, dated 25.02.1992 were not

marked before Trial Court on the side of plaintiffs, though the same were filed

along with the suit as plaint document numbers 2 and 3 respectively. PW1 (second

plaintiff) has reiterated her case during chief examination and during cross

examination, when it was suggested that she has no right to claim partition of her

maternal grandmother's individual property, the suggestions were denied, but

PW2 the other independent witness had deposed as follows:

“kz;zk;khs; jdJ ghfkhd 4 Vf;fu; 61 brd;il 4Mk; gpujpthjpf;F fpuak; bfhLj;j tptuk; bjhpahJ/ 4k; gpujpthjp kw;w 2ghf!;ju;fshd mk;kzp kw;Wk;

gj;khtplk; ghfk; nfl;L tHf;F jhf;fy; bra;Js;s tptuk; vdf;Fj; bjhpahJ/ me;j tHf;F vz;/307/04

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jPu;g;g[ bgw;W epiwntw;W kD vz;/190-10 kD jhf;fy; bra;J 4k; gpujpthjp jdJ 1-3 ghfkhd 1 Vf;fh; 51 brd;l; RthjPdk; vLj;Js;shu; vd;why; vdf;F bjupahJ/ kfhyp';fk;jhd; jhth brhj;ij ,d;iwa njjptiu mDgtpj;J tUfpwhh; vd;why; rupay;y/ 2k; gpujpthjp bry;tpjhd; mDgtpj;J tUfpwhh; bry;tp ,d;W ePjpkd;wj;jpw;F M$uhfpa[ss ; hh;. mtUld; jhd; ehd;

ePjpkd;wj;jpw;F te;Js;nsd;/'

8. Appreciating above mentioned oral / documentary evidence in the light

of non marking of two documents filed with plaint, trial Court non-suited the

plaintiffs. There is nothing before this Court to demonstrate that such appreciation

of evidence by the trial court is perverse and therefore, this court finds that no

compelling reason to interfere with the findings of trial court particularly when

there is no demonstrable perversity in appreciation of evidence.

9. The first Appellate Court, after framing the point for determination, has

also referred to O.S.No.307 of 2004 and has noticed that a preliminary decree for

1/3rd share has been made in the same. This has been concealed and suppressed.

This is articulated in Paragraph 11 of the judgment of first Appellate Court, which

reads as follows:

'11) Points:

(The Appellants/plaintiffs is arrayed as plaintiff and the respondents/defendants are arrayed as defendants)

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The suit has been filed for the relief of preliminary decree of partition of 1/5 share in the items 1 and 2 of the suit property. The appellants/plaintiffs 1 and 2 are the daughters of 2nd respondent/defendant. The relationship between the appellants/plaintiffs and respondents/defendants are admitted by either side Chinnathambi mesthiri had purchased the property in the year 1944 through Ex.A1 sale deed. He had 3 daughters. He died intestate leaving 3 daughters. The three daughters of Chinnathambi mesthri had orally partitioned the property of Chinnathambi mesthri among themselves. The 1st item of suit property which is 1.53 ½ acre of land belonging to Mannammal and her daughter 2nd respondent/defendant had executed the sale deed in favour of respondent/4th defendant in the year 2002 through Ex.B1 sale deed. The respondent /4th defendant after then had filed a suit O.S307/2004 against the two sisters of Mannammal and got preliminary decree of 1/3 share. Later through final decree and filing of execution petition, the property was delivered to 4th defendant and he was in possession and enjoyment of property. The respondent /1st and 2nd defendants had suppressed and concealed the earlier suit and had sought for preliminary decree of 1/5 share in the item 1 of suit property. The lower court had rightly dismissed the suit. Before the trial Court, the 4th defendant had filed Ex.B1 to B3 which are the registration copy of the sale deed standing in the name and patta is Ex.B2 and Ex.B3 is the dismissal order copy passed in section 5 Application which was filed by sister of Mannammal. So it is clear the 1 st item of suit property absolutely belonged to respondent/4th defendant.'

10. With regard to 4th respondent, the sequitter finding by the trial Court is

contained in Paragraph 19 and the same reads as follows:

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'19) The first defendant being the legal heir of Chinnathambi, she has absolute right to alienate the same. She had sold the suit property to the 4th defendant which cannot be questioned by the plaintiffs and the plaintiff had not convinced this Court as to how the sale deed is not binding on them and how during the life time of first defendant they can claim share in the suit property.'

11. In the light of there being nothing demonstrable to show that the above

factual findings are not hit by any infirmity, it cannot be gainsaid that the fourth

respondent has no right and in any case that does not carry the case of appellants

any further in this second appeal as that does not lead to any substantial question of

law.

12. In the light of the narrative thus far, if the elucidation (in a long line of

authorities) of what the expression 'substantial question of law' occurring in

Section 100 CPC is applied, it emerges clearly that no issue which is debatable or

res integra or no issue of settled principles being disregarded arise in the case on

hand.

13. Therefore, applying the Kirpa Ram principle being principle laid down

by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others

reported in 2020 SCC Online SC 935, this Court deems it appropriate to dismiss

captioned second appeal at the admission stage holding that no substantial question

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of law arises. Accordingly, the second appeal is dismissed. Considering proximate

blood relationship of the parties and the nature of submissions made before this

Court, there shall be no order as to costs.

28.04.2021

Speaking order: Yes/No Index: Yes/No gpa To

1.The Principal District Court Thiruvannamalai

2. The Principal Sub-Court Tiruvannamalai

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M.SUNDAR.J.,

gpa

S.A.No.420 of 2021

28.04.2021

https://www.mhc.tn.gov.in/judis/